The People of the State of New York, Respondent, v. Edward J. Courtney, Appellant

The People of the State of New York, Respondent, v. Edward J. Courtney, Appellant. The act of 1869 (Chap. 678, Laws of 1869), declaring that on a criminal trial the accused “ shall, at his own request, but not otherwise, be deemed a competent witness, ” is not violative of the provision of the State Constitution (Art. 1, § 6), declaring that no person shall “ be compelled in any criminal case to be a witness against himself.” The supposed moral coercion by reason of the adverse inference which might be drawn from the omission of the accused to testify is not compulsion within the meaning of the Constitution. It seems that, had the statute authorized a presumption of guilt from an omission to testify, and so reversed the presumption of innocence, it would violate fundamental principles binding alike upon the legislature and the courts, but as it expressly precludes any presumption against the accused it is not subject to this objection. Perjury may be assigned upon false testimony going to the credit of a witness who has given material evidence on a trial. It seems that false swearing is perjury whenever the testimony is relevant to the case, although it may not directly bear upon the issue. (Argued January 14, 1884; decided January 22, 1884.) Appeal from judgment of the General Term of the Supreme Court, of the first judicial department, entered upon an order made December 21, 1883, which affirmed a judgment of the Court of General Sessions of the peace in and for the city and county of Hew York, entered upon a verdict convicting defendant of the crime of perjury. The indictment charged, in substance, that defendant, on the trial of an indictment against him for forgery, testified in his own behalf, and gave material testimony ; that in answer to questions put to him on cross-examination, he falsely testified that he never went by any other name than that of Edward J. Courtney; that he never was an inmate of the Eastern penitentiary of Pennsylvania; and that he never served a term of imprisonment in any prison. Defendant demurred to the indictment on the ground “ that the facts stated in the indictment do not constitute a crime.” The demurrer was disallowed. On the trial, after proving the giving of the testimony as set forth in the indictment, the prosecution proved that defendant had been convicted and sentenced to imprisonment for three years in the Eastern penitentiary of Pennsylvania, under the name of Christopher Richards; and that he served his term in that penitentiary. At the close of the evidence, defendant’s counsel asked the court to direct an acquittal, upon the ground that the alleged false statements “ were immaterial, irrelevant and in no way affecting the issue, and not the subject of an indictment.” The court denied the request. William F. Kintzing for appellant. The court erred in disallowing the demurrer, for the reason that chapter 678 of the Laws of 1869, allowing defendant to testify, was and is unconstitutional, and the defendant was not, therefore, a competent witness. (Constitution, art. 1, § 6; Erben v. Lorillard, 19 N. Y. 299; People v. Gordon, 33 id. 508; People v. Hovey, 92 id. 554; People v. Ruloff, 45 id. 213, 221; Conners v. People, 50 id. 240, 242, 243.) The court erred in refusing to allow the demurrer to the indictment, upon the further ground that the testimony alleged to have been false was not material to the issue. (3 Institutes, 164; Coke [3 Inst. C. 74]; 1 Hawkins’ P. C. 429; 1 Wharton’s Am. Crim. Law [7th ed.], § 2198; 2 Bishop’s Crim. Law [7th ed.], § 1030; 2 Wharton’s Am. Law [7th ed.], § 2226; 2 Russell on Crimes [3d Eng. ed.], 596; 4 Blackst. Com. 137; 1 Gabbet’s Crim. Law, 791; 1 Hume’s Crim. Law [2d ed.], 360; 1 Allison’s Crim. Law, 465; Bacon’s Abr., title Perjury; 2 Russell on Crimes [6th Am. ed.], 600; Campbell v. People, 8 Wend. 636; Bulloch v. Koon, 4 id. 531; Hinch v. State 2 Mo. 158; Comm. v. Knight, 12 Mass. 274; Comm. v. Ward, 116 id. 17; Gibson v. State, 44 Ala. 17; Hood v. State, id. 81; State v. 23 Iowa, 403; State v. Flagg 25 Ind. 243; State v. Trask, 42 Vt. 152; Nelson v. State, 47 Miss. 621; Galloway v. State, 29 Ind. 442; State v. Robbs, 40 N. H. 229; Hembree v. State, 52 Ga. 242; State v. Bailey, 34 Mo. 350; Comm. v. Smith, 11 Allen, 243; State v. Hathaway, 2 N. & M. 113; Connor v. Comm., 2 Virginia Cases, 30; Reg. v. Owen, 6 Cox’s Cr. Cas. 105; Rex v. Naylor, 11 id. 13; Reg. v. Murray, F. & F. 80; Rex v. Griepe, 1 Ld. Raym. 258; 12 Moo. 159; Rex v. Muscot, 10 Mod. 195; Rex v. Dunston, Ry. & Moo. 109; Rex v. Nicholl, 1 B. & A. 21; Reg. v. Bartholemew, 1 C. & K. 366; Reg. v. Manton, Palmer, 382; Reg. v. Larvey, 3 C. & K. 26; 5 Cox’s Cr. Cas. 259; Rex v. Morton, 6 C. & P. 562; Rex v. Robbins, 2 M. & R. 512; Rex v. Alsop, 11 Cox’s Cr. Cas. 264; Reg. v. State, 12 id. 7; Reg. v. Harvey, 8 id. 99; Reg. v. Berry, id. 121; Reg. v. Townsend, 10 id. 156; Reg. v. Ball, 6 id. 360; 2 Bishop on Crim. Law, § 1038 [7th ed.]; Brandon v. People, 42 N. Y. 265; Connors v. People, 50 id. 240; People v. Casey, 72 id. 393; People v. Brown, id. 574; People v. Crapo, 76 id. 290.) The judgment herein should be reversed and defendant discharged. (Code of Crim. Pro., § 545.) John Vincent for respondent. The line of cross-examination pursued in this case, and which brought out the statements upon which the several assignments of perjury are herein predicated, is expressly authorized. (Penal Code, § 714.) The evidence was material, as it went to the credibility of the witness, who was at the time testifying on his own behalf, and the people on his cross-examination had the right to an answer to any .question relevant to the conviction, for the purpose of affecting the weight of his testimony. (Hawkins’ Pl. Cr., b. 1, chap. 69; United States v. Landsburg, MSS. Op.; Archb. Prac. and Pleas, 817; Reg. v. Gibbons, 9 Cox’s Cr. Cas. 108) The Law of 1869 (Chap. 678) is constitutional. (1 Sup. U. S. R. S., chap. 37; People v. Brandon, 42 N. Y. 265; People v. Comm’rs, 50 id. 252.) [MAJORITY — Andrews, J.] Andrews, J. The argument in support of the demurrer to the indictment rests upon three propositions : first, that by section 6, article 1 of the Constitution, no person can be compelled in a criminal ease to be a witness against himself ; second, that the act chapter 678 of the Laws of 1869, violates this constitutional provision; and third, that false swearing on the trial of an indictment, by the party indicted, on his examination, under the act of 1869, is not, therefore, legal perjury. Whether the conclusion is a logical or legal deduction from the premises, need not be considered, for the reason that the minor premise is not well founded. The act of 1869 is permissive, and not compulsory. It permits a person charged with crime to be a witness in his own behalf. But it does not compel him to testify, nor does it permit the prosecution to call him as a witness. He can be sworn only at his election, and the statute declares that his omission or refusal to testify shall create no presumption against him. The policy of the act of 1869 has been criticised in some cases in this court. But the policy or propriety of a law is a legislative, and not a judicial question. The supposed moral coercion upon a person accused of crime to offer himself as a witness by reason of the adverse inference which might be drawn from his omission to testify, when presumbly all the facts are known to him, is not compulsion within the meaning of the Constitution. The Constitution primarily refers to compulsion exercised through the process of the courts, or through laws acting directly upon the party, and has no reference to an indirect and argumentative pressure such as is claimed is exerted by the statute of 1869. A law which, while permitting a person accused of crime to be a witness in his own behalf, should at the same time authorize a presumption of guilt from his omission to testify, would be a law adjudging guilt without evidence, and while it might not be obnoxious to the constitutional pi’ovision against compelling a party in a criminal case to be a witness against himself, would be a law reversing the presumption of innocence, and would violate fundamental principles, binding alike upon the legislature and the courts. The act of 1869 expressly precludes such a presumption from the silence of the accused, and while it may be difficult for a jury in many cases to exclude the inference of guilt from an omission of a defendant to be sworn, we cannot assume that it may not be done. The statute assumes it to be possible, and we cannot say, judicially, that such assumption is unfounded. The demurrer was, therefore, properly overruled. The only remaining question worthy of notice arises on the motion of the prisoner’s counsel on the trial that the court should direct an acquittal on the ground that the matters on which the perjury was assigned were immaterial. It is true that the false testimony did not bear directly .upon the main issue on the trial for forgery, but only upon the credit of the witness who gave material evidence on the merits. Evidence going to the credit of a witness who has given material evidence is relevant, because it helps the jury in determining the main issue. The recent cases sustain the view that perjury may be assigned upon false testimony, going to the credit of a witness. (Reg. v. Glover 9 Cox’s Crim. Cas. 501; Reg. v. Layey, 3 C. & K. 26; Arch. Crim. Pr. 817.) False swearing in respect to such matter is not distinguishable in respect to moral turpitude from false swearing upon the merits, and, we think, there is no just reason for refusing to treat false swearing as perjury whenever the testimony is relevant to the case, although it may not directly bear upon the issue to be found. The questions are carefully considered in the opinions at General Term, and further elaboration is unnecessary. The judgment should be affirmed. All concur. Judgment affirmed.